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Awareness v. City of Naperville

United States District Court, N.D. Illinois, Eastern Division

September 25, 2014

NAPERVILLE SMART METER AWARENESS, an Illinois not-for-profit corporation, Plaintiff,

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For Naperville Smart Meter Awareness, an Illinois not-for-profit corporation, Margaret Mary Wood, Scott J Derengowski, Kimberley Wells Hamilton, Jo Malik, Jennifer Stahl, Tom Glass, Kim Bendis, Glenn A Mendoza, Amanda Rykov, Plaintiffs: Doug Elston Ibendahl, LEAD ATTORNEY, Attorney at Law, Chicago, IL.

For City of Naperville, Defendant: Margo Lyn Ely, LEAD ATTORNEY, Kristen June Foley, City of Naperville, Naperville, IL.

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JOHN Z. LEE, United States District Judge.

Naperville Smart Meter Awareness (" NSMA" ), an Illinois not-for-profit corporation, has sued the City of Naperville (" the City" ) pursuant to 42 U.S.C. § 1983, alleging violations of its members' rights to due process and liberty in bodily integrity and self-determination under the Fourteenth Amendment (Count I), freedom from unreasonable search under the Fourth Amendment (Count II), and equal

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protection of the laws under the Fourteenth Amendment (Count III). NSMA also alleges discrimination on the basis of disability in violation of Titles II and III of the Americans with Disabilities Act of 1990 (" ADA" ), 42 U.S.C. § 12101 et seq. (Count IV). The City has moved to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure (" Rule" ) 12(b)(1) and Rule 12(b)(6). The City has also moved for sanctions pursuant to Rule 11(c)(2). For the reasons set forth herein, the Court grants in part and denies in part the City's motion to dismiss. The Court also denies the City's motion for sanctions.

Factual Background[1]

In Naperville, Illinois, all residential electrical utility services are provided by the Department of Public Utilities-Electric, a company owned and operated by the local city government. 2d Am. Compl. ¶ 16. In 2012, the Naperville Department of Public Utilities-Electric began replacing its customers' analog electricity meters with smart meters as part of a local program called the Naperville Smart Grid Initiative. Id. ¶ ¶ 25, 73. The Naperville Smart Grid Initiative is funded in part by the U.S. Department of Energy, which received $4.5 billion of federal tax dollars under the American Recovery and Reinvestment Act of 2009 for the purpose of modernizing the nation's electrical power grid. Id. ¶ 25. The objectives of the Naperville Smart Grid Initiative include increasing energy efficiency, reducing emissions, and lowering electricity consumption costs. Id. Ex. A, Attach. E, Statement of Project Objectives.

Like analog meters, smart meters measure customers' total residential electricity usage for monthly billing purposes. Id. ¶ 35. Unlike analog meters, however, smart meters are equipped with wireless radio transmitters that, when activated, send usage data via radio-frequency waves to nearby neighborhood " network access points," which then relay usage data to Naperville's Department of Public Utilities-Electric. Id. ¶ ¶ 41-42. The functionality of smart meters thus obviates the need for the City to send in-person meter readers to residents' homes. See id. Another difference is that, while analog meters are capable of measuring only total accumulated electricity consumption, smart meters measure aggregate electricity usage much more frequently, in intervals of fifteen minutes. Id. ¶ ¶ 33, 35.

As an alternative to having new smart meters installed in their homes, Naperville residents may opt to have their old analog meters replaced with " non-wireless meters." Id. ¶ 177. These " non-wireless meter alternatives" are essentially smart meters with their radio transmitters deactivated so that they emit no radio-frequency waves and must be read manually by a meter reader each month. See id. ¶ ¶ 179-80. Residents who choose the non-wireless meter alternative must pay a one-time installation fee of $68.35, plus an additional monthly fee of $24.75. Id. ¶ 181.

NSMA is an Illinois not-for-profit corporation whose stated mission is to " educate, engage and empower families, friends and neighbors to advocate for a fiscally responsible and safe utility meter solution in Naperville, Illinois." Id. ¶ 8. NSMA alleges that the radio-frequency waves that

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smart meters emit present health risks to Naperville residents. In support, it claims that radio-frequency waves have been " proven to cause headaches, ringing in the ears, anxiety, sleep disorders, depression, and other symptoms, particularly in individuals who suffer from electromagnetic sensitivity." Id. ¶ 99. Furthermore, because smart meters are capable of taking data measurements in frequent, discrete time increments, NSMA alleges that they present privacy risks that analog meters do not. Specifically, NSMA claims that a home's smart-meter data history is capable of revealing " intimate details about residents' personal lives and living habits" and that " [a]n inspector of this detailed history can determine at what time residents are home, and . . . could even make reasonable assumptions regarding particular appliances and lighting presently in use." Id. ¶ ¶ 38, 235.

NSMA now brings a number of constitutional and federal claims in connection with its various objections to the implementation of the Naperville Smart Grid Initiative. First, NSMA claims that the City has deprived its members of their right to bodily integrity and self-determination under the Fourteenth Amendment by installing unsafe smart meters without first giving residents an opportunity to oppose the Naperville Smart Grid Initiative at a public hearing or through the referendum process. Id. ¶ ¶ 217-20. NSMA also alleges that the City's collection of detailed smart-meter data constitutes an unreasonable search of information under the Fourth Amendment. Id. ¶ 229. Next, NSMA alleges that the City has violated its members' right to equal protection, both by charging fees for the non-wireless meter alternative as well as by denying requests by NSMA members to retain analog meters for medical reasons while granting similar requests made by non-members. Id. ¶ ¶ 240-42. Finally, NSMA claims that imposing fees on residents who opt for the non-wireless meter alternative discriminates against certain disabled residents who are especially threatened by health risks related to smart meters. Id. ¶ ¶ 251-54. NSMA seeks an injunction ordering the City to make analog meters and non-wireless meters available at no additional cost upon customer request. Id., Prayer for Relief ¶ 2.

Earlier in this litigation, the Court granted the City's motion to dismiss NSMA's First Amended Complaint with leave to amend some of the counts therein. NSMA has since filed a Second Amended Complaint. The City now moves to dismiss the Second Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6).


I. Subject Matter Jurisdiction

As a preliminary matter, the City moves to dismiss NSMA's claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). In particular, the City asserts that NSMA lacks standing to bring its claims and that this case is moot. The Court will address these two arguments in turn, taking as true all facts alleged in the Second Amended Complaint and drawing all reasonable inferences in NSMA's favor. See Miller v. ...

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